FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEONARDO OCAMPO IGNACIO, No. 06-70600
Petitioner, Agency No. A072-441-405
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2010
San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
Leonardo Ocampo Ignacio petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
request to reinstate his asylum application and denying his Motion to Remand.1 He
argues that his hearing before the IJ did not comport with due process. Because we
agree, we grant the petition and remand for a new hearing. We do not reach the
question whether the BIA abused its discretion in denying Ignacio’s Motion to
Remand.
An asylum applicant’s due process rights are violated when the IJ judges the
merits of his claim before hearing his testimony. See Colmenar v. INS, 210 F.3d
967, 971-72 (9th Cir. 2000); see also Cano-Merida v. INS, 311 F.3d 960, 964-65
(9th Cir. 2002). At Ignacio’s first IJ hearing on November 13, 2003, the IJ stated
that she “d[id] not want [his asylum application] filed” and “propose[d] . . . that he
today withdraw his application . . . .” She later explained that the reason that she
had “encouraged, if not worse, [Ignacio’s] counsel to have [Igancio] withdraw” the
asylum application was because, based on what appeared on the face of the
application, “it didn’t appear that there was any viable claim.” By prejudging
Ignacio’s asylum claim before hearing his testimony and then pressuring him to
withdraw his asylum application, the IJ violated his due process right to a full and
fair hearing before a neutral judge. See Cano-Merida, 311 F.3d at 964. Although
1
The BIA also affirmed the IJ’s denial of Ignacio’s application for
cancellation of removal. Ignacio does not contest that aspect of the BIA’s
decision.
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the IJ appears to have been well-intentioned, “[w]hether or not [she] believed [s]he
was doing [Ignacio] a favor is irrelevant.” Id. at 965.
“As a predicate to obtaining relief for a violation of procedural due process
rights in immigration proceedings, an alien must show that the violation prejudiced
him. To demonstrate prejudice, an alien need demonstrate only that the IJ’s
conduct potentially . . . affect[ed] the outcome of the proceedings.” Reyes-
Melendez v. INS, 342 F.3d 1001, 1007 (9th Cir. 2003) (internal quotation marks
and citations omitted) (alteration in original). Ignacio did not receive his asylum
hearing at all. The subsequent proceeding did not cure this prejudice. There, the IJ
denied Ignacio’s request to reinstate his asylum application because he had not
shown that his circumstances had changed since he withdrew it. Had Ignacio not
withdrawn his application, he would not have had to establish changed
circumstances in order to prevail on his asylum claim. Rather, he would have had
to establish only a well-founded fear of persecution. The imposition of the
additional requirement that he demonstrate changed circumstances “potentially . . .
affect[ed] the outcome of his proceedings.” Id. Accordingly, we grant the petition
and remand to the BIA with instructions to remand to the IJ for a hearing on the
merits of Ignacio’s asylum application.
GRANTED and REMANDED.
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